Thursday, June 12, 2014

The 1992 amendments to the Rehabilitation Act of
1973 (“Act”) expanded the rights of federal employees with disabilities. As a
result, the federal government is now subject to many of the requirements
already established by the Americans with Disabilities Act of 1990 for the
private sector. Congress intended the
Rehabilitation Act, as amended, to sweep away the judicial confusion regarding
the federal government’s obligations to disabled individuals. Broadly, the Act prohibits the federal
government from employment discrimination based on disability and states
loftily that the federal government “shall be a model employer of individuals with
disabilities.” Section 501 of the Rehabilitation
Act; see also 29 C.F.R §1614.203(a). Regrettably, the Act neglects to explain what federal agencies must do to comply with this
obligation.

Hence, the U.S. Equal Employment Opportunity
Commission (EEOC) recently began soliciting comments from the public on what
precisely it means to be a model employer under Section 501 of the
Rehabilitation Act. The Advance Notice
of Proposed Rulemaking is available at https://www.federalregister.gov/a/2014-11233,
and the deadline to submit a response is 5:00 p.m. EDT on Monday, July 14,
2014.

The Oxford English Dictionary defines “model” as a “system or thing used as
an example to follow or imitate[.]” This
is a high standard, and it follows that the revised regulations should tell us
something about what society’s best expectations ought to
be for the employer.

Different states have begun work on accomplishing
this task. Ideas include instituting
education and awareness training for supervisors, managers, and other decision
makers; targeted recruitment and proactive outreach efforts to better inform
the disability community of federal government opportunities; establishing
internship programs; partnering with community-based organizations that serve
disabled individuals to expand its recruitment pool; improving the
accessibility of the employment application and hiring process for job seekers
with a wide range of learning styles; and enhancing access to reasonable
accommodations. For more information, go
to http://www.dol.gov/odep/categories/workforce/NTAR_Issue_Brief_5_States_Model_Employers.pdf.

Reasonable
accommodation is a frequent issue
in legal disputes. Many claims against employers consist of
inefficiency, ineffectiveness, and lack of clarity during the interactive
process that should follow a request for accommodation. If the Agency sets up an oversight system
that provides feedback to deciding officials (e.g., supervisors and managers),
then there is room to grow. A yearly
reporting of management’s reasonable
accommodation decisions, along with an explanation for each decision, and a
chronicle of what was accomplished could provide valuable data regarding what
measures are effective.

Whatever direction it
takes, clearing up the ambiguity surrounding the government’s “model employer”
obligations under Section 501 of the Rehabilitation Act is critical. Currently, federal agencies are not leaders
on employment rights for disabled individuals.
You can help by submitting your ideas to the EEOC. More information is available at http://www.eeoc.gov/eeoc/newsroom/release/5-15-14.cfm.